Lake v. Gautreaux

893 So. 2d 252, 2004 WL 2521889
CourtCourt of Appeals of Mississippi
DecidedNovember 9, 2004
Docket2003-CA-00801-COA
StatusPublished
Cited by1 cases

This text of 893 So. 2d 252 (Lake v. Gautreaux) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lake v. Gautreaux, 893 So. 2d 252, 2004 WL 2521889 (Mich. Ct. App. 2004).

Opinion

893 So.2d 252 (2004)

Larry LAKE, Jr. and Jamie Lake, A Minor, By His Father and Next Friend, Larry Lake, Jr., Appellants,
v.
Mr. or Mrs. Charles GAUTREAUX, Father, Mother and Natural Guardians of Jonathan S. Gautreaux, A Minor, and Jonathan S. Gautreaux, Appellees.

No. 2003-CA-00801-COA.

Court of Appeals of Mississippi.

November 9, 2004.
Rehearing Denied February 8, 2005.

*253 Thomas J. Lowe, Jr., Jackson, Peter K. Smith, attorneys for appellants.

Jan F. Gadow, H. Gray Laird, Jamie Deon Travis, Ridgeland, attorneys for appellees.

Before BRIDGES, P.J., MYERS and BARNES, JJ.

MYERS, J., for the Court.

¶ 1. On September 24, 1997, Larry Lake, Jr. and his son, Jamie Lake, were involved in a two car collision in Clinton, Mississippi, with Jonathan Gautreaux. The Lakes were waiting at a stoplight when their vehicle was rear-ended by Gautreaux. As a result of this accident, the Lakes suffered actual damages in excess of $11,000. The Lakes filed suit on July 21, 1999, in the First Judicial District of the Hinds County Circuit Court seeking compensatory and punitive damages. On July 18, 2002, the Lakes's case went to trial where the jury returned a verdict of $6,091.14. The trial court entered an additur of $3,000 to the verdict, for a total of $9,091.14. Aggrieved by this result, Lake appeals raising the following two issues:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION D-4.
II. WHETHER THE ADDITUR OF $3,000 WAS ADEQUATE.

¶ 2. Finding that the trial court erred in its granting of jury instruction D-4, we reverse and remand for a new trial on the issue of damages.

STATEMENT OF FACTS

¶ 3. On September 24, 1997, in Clinton, Mississippi, Larry Lake, Jr. was accompanied by his son, Jamie Lake, in his automobile. The Lakes were waiting at a stoplight when their vehicle was rear-ended by Jonathan Gautreaux, a high school student, who was driving his family's pickup truck. Larry Lake then pulled his vehicle into a restaurant parking lot where he telephoned his fiancee and her mother to inform them of the accident. After making this call, Larry Lake then sat on the floor underneath the telephone because of dizziness, to wait for the arrival of an ambulance. When the ambulance arrived, the Lakes were taken to the hospital where they were examined and x-rayed. The x-rays revealed no broken bones or other apparent injuries so the Lakes were given some pain medication and released.

¶ 4. Though Larry Lake's visit to the hospital did not reveal any injuries, the *254 next day he began feeling the effects of the accident and met with his fiancee's doctor, Dr. David B. Wheat. Wheat prescribed physical therapy, which Lake was unable to complete long-term because of the expense and a lack of medical insurance. Lake attempted to resume his normal life by returning to work but was unable to perform his work at the level prior to the accident. Lake worked for Kelly Drywall in Jackson, Mississippi and was only able to perform the required work in two to three hour intervals. Lake then returned to Dr. Wheat who ordered an MRI as well as prescribing additional physical therapy and advising Lake to take additional time off work. Unable to afford physical therapy and no longer able to pay his bills, Lake borrowed approximately $1,500 from his family and friends and moved back to Clarksdale, Mississippi.

¶ 5. In Clarksdale, Lake was still without money and unable to afford the physical therapy sessions as prescribed by Dr. Wheat. He then started work with Waste Management washing trucks. Lake was later promoted as a repairman of the trucks and at that point was making one-dollar per hour less than he did at his prior job with Kelly Drywall. After sixteen months of employment with Waste Management, Lake went to work for White Construction at the same hourly rate as he received during his tenure with Kelly Drywall.

¶ 6. From the time of the accident up to trial, Lake was experiencing pain and numbness in his right hand and right side of his body. He stated at trial that he has to try to conduct his day to day operations with his left arm and has experienced trouble sleeping due to pain.

¶ 7. Lake filed suit in the Circuit Court of the First Judicial District of Hinds County, Mississippi on July 21, 1999, seeking compensatory damages and punitive damages for the accident. The case went to trial on July 18, 2002. At trial, Lake alleged that he suffered $11,929.99 in actual damages. These damages being categorized as $8,448 in lost wages and $3,481.99 in medical expenses. After the presentation of the case, the jury was given instructions on how they should form their verdict. The jury returned with a verdict of $6,091.14. The trial court then entered an additur of $3,000 towards the jury verdict. Aggrieved by the court's granting of jury instruction D-4 and the result, Lake appeals the decision of the trial court.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION D-4.

STANDARD OF REVIEW

¶ 8. It is well established in Mississippi that on appeal, this Court does not review jury instructions individually. Instead, jury instructions are read as a whole to determine if the jury was properly instructed. Defects in specific instructions do not require reversal where all instructions taken as a whole fairly, but not perfectly, announce the applicable rules of law. However, if those instructions do not fairly or adequately instruct the jury, this Court can and will reverse. Boone v. Wal-Mart Stores, Inc., 680 So.2d 844, 845 (Miss.1996).

DISCUSSION

¶ 9. Lake contends that jury instruction D-4 was not a proper instruction of law in determining this case. The instruction as given read:

You are instructed that a Plaintiff is under a duty after suffering harm, if any, to exercise due care and to take reasonable steps to avoid or diminish the *255 damages resulting from that harm. You are further instructed that a Plaintiff is not entitled to recover damages for the harm he could have avoided by the use of due care, nor for the harm which proximately resulted from his own conduct, if any, which contributed to his damages.
If you find from a preponderance of the evidence in this case that Larry Lake, Jr. was instructed by his physician to take certain steps in an attempt to treat the medical conditions which he, Larry Lake, Jr., claims resulted from the accident on September 24, 1997, and if you further find that Larry Lake, Jr. failed to follow his physician's instructions in that regard, and if you further find that such failure on the part of Larry Lake, Jr., if any, caused him to endure certain medical conditions or incur certain bills that he otherwise would have avoided by following his physician's instructions, then you are instructed that Larry Lake, Jr. is not entitled to recover damages for those medical conditions and/or medical bills that he would have avoided by following his physician's instructions.

¶ 10. This instruction is identical to instruction D-3, as given in the case of Herring v. Poirrier, 797 So.2d 797, 806(¶ 26) (Miss.2000). As stated in Perry v. State, "[J]ury instructions are not given unless there is an evidentiary basis in the record for such." Perry v. State, 637 So.2d 871, 877 (Miss.1994) (quoting Fairchild v. State, 459 So.2d 793, 800 (Miss.1984)).

¶ 11. Gautreaux contends that the Herring case is controlling; we disagree. In Herring,

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893 So. 2d 252, 2004 WL 2521889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-v-gautreaux-missctapp-2004.